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In one of my blogs on Google Street View, I wrote that the Information Commissioner (ICO) could not serve a Monetary Penalty Notice (MPN) on Google when its software captured some personal data from household Wi-Fi systems. This assessment was based on the fact that Google published statements to the effect that only an insignificant cache of random personal data was captured and that any capture of personal data was wholly unintentional.

I argued that the problem when serving an MPN under the Data Protection Act is that any breach has to be both substantial and deliberate; insignificant and unintentional are miles away from that threshold. Thus taking Google’s statements on face value, I thought that the ICO would not be able to serve a MPN.

Indeed, I thought an undertaking was about as far as the ICO could go under the Data Protection Act; that undertaking required Google to delete any personal data collected and submit to a later audit.

Two recent events could change that position:

A report (April 2012, PDF) from the USA’s Federal Communications Commission (FCC) has shown that the Google’s data collection by Wi-Fi was intentional (eg, the data was collected for use in other Google projects). The project was unsupervised and this lack of supervision led to an engineer writing software to facilitate interception of Wi-Fi communications (para 51 of report).

A Federal Swiss Court (June 2012, PDF) has ruled that in some circumstances, the collection of Street View images could be unfair, excessive and may need consent.

For the ICO, the FCC findings are an embarrassment; it looks as if he should not have taken Google’s reassurances at face value and perhaps ordered Google to retain what personal data it captured (some data protection commissioners have done this). If, for example, the ICO had served a formal Information Notice on Google, then because of the FCC report findings, Google would be at risk of committing an offence, because the ICO was furnished with explanations of suspect quality (or “porkies”, if one wants to be more direct).

Assuming that Google has deleted the personal data (under ICO instructions) it is rather difficult for the ICO to now turn the clock back or indeed prove anything. However, I think the Federal Swiss Court decision gives the ICO an “out” (if he needs one); all he does is get Google to implement something similar to the court’s conclusions in the UK.

In its judgment (PDF) the Swiss Federal Supreme Court clarified a number of data protection issues in relation to Swiss data protection law. As this law is equivalent to Directive 95/45/EC (Swiss Data Protection law has been determined to offer an “adequate level of protection” as required by the Eighth Data Protection Principle of the UK Act), it is reasonable to assume that some or all of the court’s conclusions are mirrored in the UK Act (although obviously the detail has to be determined).

The Federal Supreme Court found that Google does indeed process personal data with regard to images in its online Street View service and that the publication of inadequately blurred images can violate a person’s right to his or her own image and privacy. The court also emphasised that individuals should not feel as if they are under constant surveillance. Both these issues could easily be mapped onto “unfair processing” requirements in UK First Principle terms.

The Federal Supreme Court also required that Street View images of sensitive facilities – particularly women’s refuges, nursing homes, prisons, schools, courts and hospitals in Street View – must be rendered entirely anonymous prior to publication on the internet and stipulated that in addition to faces, other identifying characteristics such as skin colour, clothing, aids of physically disabled persons etc should no longer be identifiable.

According to the Swiss Data Protection Commissioner, this means that in such cases it will no longer be sufficient to blur faces and that such images may have to be altered, perhaps manually.

The court also criticised the fact that the elevated cameras on Street View cars afforded views into private areas such as enclosed yards and gardens this view and stated that “images of private areas not open to view to an ordinary passer-by are not to be published without the consent of the persons concerned”. This links to excessive and also to unfair processing in UK Data Protection Principle terms.

The court granted a transition period of three years to correct the relevant Street View images that have been collected, while newly published images will have to comply with these requirements immediately.

In addition, Google must improve its online notices regarding the right to correction and also accept complaints sent by post. Furthermore, Google must also provide at least a week’s advance notice of where it plans to record images, and announce a week before publication the localities that are going to be published online. This information must not only be published on the internet, but also appear in the local media.

With regard to the demand that all faces on Street View to be blurred by automated means, the court stated that the maximum permissible error rate “must be no higher than 1 per cent”. Google will be required to document these improvements for the Swiss Data Protection Commissioner on an ongoing basis.

Because of the FCC Report and other behavioural advertising issues, Google has never been "flavour of the month". That is why I think this Swiss judgment will be closely scrutinised by most of Europe’s Data Protection Commissioners to see what parts can be implemented elsewhere in Europe.